By Jibrin Ibrahim
The Onnoghen affair has posed a major question for Nigeria. Do the wheels of justice work when judges and senior members of the bar infringe our laws or are they above the law? The Court of Appeal has just confirmed that Mr. Walter Onnoghen is indeed properly charged with criminal activities and yet this man in his capacity as head of the judiciary was determined to tell the world that the law cannot apply to him. The judiciary advises citizens that it is wrong to evade court summons but that was exactly what he did when the bailiff turned up in his office. Judges warn Nigerians to stop wasting the time of courts and avoid the practice of shopping for judgements and that was exactly what he did sending Senior Advocates of Nigeria (SANs) to numerous courts to make the argument that he is above the law. Mr. Onnoghen had himself delivered judgement that the Code of Conduct Tribunal is the correct place for public servants who have breached the law to be tried, but after his confession that he had indeed broken the law, he became a turn coat and argued that they must not try him. Nigerians were forced to watch in disgust as the leader of the judiciary turned himself into an object of ridicule who thought he should be above the law.
As all these events unfolded, the Nigerian Bar Association (NBA) turned itself into an active lobby noisily making the case that the chief justice was above the law. It was the NBA that made the case in 2016 that judges charged with criminal offences must the suspended from office for the duration of their trial. It was common sense. When, however, the CJN was affected, the new leadership of the Bar turned around and sought thousands of technical reasons why the policy must no longer be operational because the person involved was the biggest man in the judiciary. They threw out the core principle of the rule of law, which stipulates that no one is above the law, because the person involved is apparently their man.
We must find out why the leadership of the NBA has been so determined to stop the wheels of justice and sought to protect one Nigerian citizen called Walter Onnoghen. As Femi Falana has rightly suggested, the reason might not be unconnected to partnership in crime. As he put it, a lot of our SANs know with precision the corrupt players in the judiciary, after all it takes two to tango. In 2016, the acting chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, had charged members of the Nigerian Bar Association to be more forthright in the struggle against corruption. He was right to make the point that: “Society is not served when prominent members of the bar not only take clearly tainted briefs, but even facilitate the commission of crimes by knowingly supplying the technical know-how and later, helping in the dispersal of the proceeds of crime.”
Our Constitution has given the leadership of the judiciary to the chief justice of Nigeria and the National Judicial Council and they have abdicated this leadership. So many judges and senior lawyers whose hands have been caught in the till have had very soft outcomes, usually being released on technical grounds or simply retired so that they have time to fully enjoy the billions they have accumulated from bribes to pervert the course of justice. On a daily basis, judges from different courts of coordinate jurisdiction give contradictory judgments and both criminal and political actors have become very aware that there are Jankara judges ready to sell judgments and rulings for a fee, without any worry about their personal or institutional reputation.
It was the famous British jurist, Lord Denning, who made the point that:
“A judge should in his own character be beyond reproach, or at any rate should have so disciplined himself that he is not himself a breaker of the law. Time and time again he has to pronounce judgment on those who have offended against the law. He has to rebuke the evil and support the good. He cannot well do this – he cannot without hypocrisy do it – if he himself has been found guilty of an offence against the law.”
Many of our judges have taken the decision that this core value does not apply to them. The list of judges with vast sums of unexplained wealth has been growing and yet the judicial institution, which is self-governing, has refused to pose the required ethical questions and start the process of correcting itself. As Walter Onnoghen engaged in antics of avoiding prosecution and defending himself against the serious charges he faces, many senior lawyers were playing the ostrich. Thank God they are not all like that. One senior lawyer, Yemi Candide-Johnson (SAN) came out and told his colleagues to stop “quibbling about form. Averting their gaze from the frightening substance is a tactic of diversion. The substance is that the grievous wrongdoing on the seat of justice is a crisis of confidence which utterly undermines the rule of law and the Constitution.” Yes indeed, a judge caught red-handed with millions of unexplained dollars cannot seek to evade trial while sitting in judgment over others.
Walter Onnoghen put Nigeria along the path to constitutional crisis by seeking to act as if he was above the law and President Muhammadu Buhari worsened the situation by suspending him without the accord of the National Judicial Council and swearing in Justice Tanko Muhammad as his interim replacement without allowing the National Judicial Council and the Senate play their constitutional roles. The president was aware that he has no such powers, so he justified his action by claiming he was obeying a directive of the Code of Conduct Tribunal, before which Mr. Onnoghen is standing trial. The Tribunal, however, has no such powers, so both wrongs cannot make a right. The Constitution is clear that the powers of appointment and removal of the chief justice are shared powers, which the president cannot exercise alone. It is also settled law that only the NJC is constitutionally vested with the authority of disciplinary control, including that of suspension of an erring judicial officer. The removal of the CJN has created much concern with the way processes of court and law are flagrantly being abused.
Mr. Onnoghen had himself presided over the establishment of the jurisprudence for suspension of all judicial officers charged with wrongdoing. He, therefore, had an absolute responsibility to step down immediately and allow the National Judicial Council deliberate upon and take a decision on the matter. Instead, he took the irresponsible action of stopping the 88th statutory meeting of the National Judicial Council scheduled to hold on January 15, 2019, which could have deliberated on the matter and taken a proper decision based on the facts of the case and precedence. Now that the National Judicial Council has stepped into the matter and queried the chief justice and his deputy, we hope there would be a speedy return to constitutionalism requiring that the CJN has his day in court. The attempt by the discredited NBA for a so-called soft landing for Walter Onnoghen must be rejected, as no one is above the law. It was good to see many lawyers ignore the two-day boycott of courts showing the grassroots lawyers are aware that their leaders are doing the wrong things.
Nigerians are seriously concerned about the entrenched culture of corruption and impunity in the country. Therefore, it beholds on the National Judicial Council to ensure justice is not just done but seen to be done in the CJN matter. More importantly, all the judges and senior lawyers notorious for bribe-taking must be investigated and prosecuted. Moving forward, Nigerian judges must begin to take decisive action to show that they are not self-serving in their actions. Our courts have been striking out cases filed against judges and the only subsequent action has been the compulsory retirement of such judges by the NJC. This is not good enough. The principle of the rule of law is that it is not the person but the act that is important. If judges cheapen themselves by receiving bribes and selling jankara judgments, it is wrong to seek to protect them simply because they are judges. The reputational erosion of Nigerian judges has become so deep that radical action has been required to save the judiciary. The fight back mechanism by the judiciary to protect the corrupt within them is an unfolding tragedy that must stop. Corrupt judges have no integrity or reputation and must be treated as the criminals they have become.
A professor of Political Science and development consultant/expert, Jibrin Ibrahim is a Senior Fellow of the Centre for Democracy and Development.